Following the recent restoration of its quorum, the U.S. Equal Employment Opportunity Commission (EEOC) has moved quickly to update its resources for employers. On November 19, 2025, the EEOC released a new technical assistance document and updated its landing page regarding national origin discrimination.
This release follows the confirmation of a new commissioner on October 7, 2025, which gave the agency the three-member quorum necessary to conduct official business and issue new guidance.
Background: National Origin Discrimination
National origin discrimination involves treating applicants or employees unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background.
The law forbids discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and fringe benefits.
Key Highlights of the New Guidance
The newly issued technical assistance clarifies the EEOC’s stance on several critical areas, with a notable emphasis on protecting the rights of U.S. workers.
- Protections for U.S. Workers. The guidance explicitly addresses “anti-American” national origin discrimination, noting that the law protects U.S. workers from being treated unfavorably in comparison to non-U.S. workers.
- Hiring and Recruitment Practices. The EEOC warns against using discriminatory job advertisements, such as those suggesting a preference for applicants with specific visa statuses.
- Pay Discrimination and Visa Workers. The guidance explicitly states that pay discrimination related to national origin includes paying employees who are visa guest workers (including workers on H-1B visas, H-2A visas, etc.) less than similarly situated American workers.
- Disparate Treatment: The document highlights that employers cannot engage in disparate treatment, such as terminating employees between assignments at a higher rate than visa guest workers or imposing stricter application processes on U.S. workers.
- Invalid Business Justifications: The guidance reiterates that employers cannot justify hiring foreign workers over American workers based on customer or client preference, or because of lower labor costs.
- Harassment and Retaliation: The update reaffirms that harassment based on national origin, such as severe or pervasive remarks about ethnicity or accent is prohibited, as is retaliation against employees who oppose such discrimination.
Next Steps for Employers
To ensure compliance with these updated priorities and the EEOC’s renewed enforcement capability, employers should consider the following actions:
- Audit Hiring Protocols: Review recruitment strategies and job postings to ensuring they do not unintentionally express a preference for non-U.S. workers or visa holders.
- Conduct a Pay Equity Audit. Review compensation data to ensure that visa guest workers (H-1B, H-2A, etc.) are not being paid less than American workers performing similar duties.
- Review Vendor Contracts: Assess contracts with staffing agencies and vendors to ensure their practices comply with national origin non-discrimination laws.
- Train Hiring Managers: Educate HR personnel and recruiters on lawful selection criteria, emphasizing that factors like “customer preference” or “lower labor costs” are not valid defenses for discriminatory hiring.
- Document Selection Criteria: Maintain clear, objective, and job-related standards for hiring and promotion to defend against potential claims of disparate treatment.
